Judgement PRAKASH SHRIVASTAVA, J. :- This Criminal Appeal has been filed against the judgment of the trial Court dated 25.05.1993 by which appellants have been convicted for offence under section 302 read with section 34 of the I.P.C. and sentenced for imprisonment of life. 2. The prosecution story is that on 23rd September, 1989 at 8.15 p.m. Jahid Baksh (PW4) and his brother Tahir had taken their buffaloes to the hand pump in front of Masjid of Ghansu Munshi for giving water. Accused Tohid was filling water in his buckets at the hand pump. The buffaloes of Jahid Baksh and Tahir drank water from the buckets of accused Tohid, on which Tohid started abusing, which led to an altercation between both the parties, on which Tohid picked up a lathi which was brought by Jahid to move the buffaloes and assaulted Jahid on his back and left the spot saying that "I will call Baboo". After sometime Tohid and Baboo came with the sword. When the accused came, at that time, Jahid Baksh was collecting his buffaloes. On corning there, accused caught hold of Tahir and accused Tohid inserted the sword on the left side of chest of Tahir. PW4 Jahid Baksh came out to save Tahir and Baboo attacked Tahir with the sword which caused injuries on the left hand finger of Tahir. After that Tohid again attacked Tahir with sword. Tahir ran away from the spot to save himself and was followed by the accused persons. Tahir went towards the crossing and fell down in a tempo, seeing which the accused persons ran away. FIR (Ex.P/8) of the incident was lodged by PW8 Abdul Shakil and the appellants have been convicted after trial. 3. Shri S.C. Datt, learned Senior Advocate appearing for the appellants has submitted that there was no prior enmity of the appellants with the deceased and the accused were unarmed when the fight started. In fact the deceased party had attacked first since they had the grudge because accused had stopped their buffaloes from drinking water. He, further submitted that the injuries found on the person of the accused have not been explained and accused also received bleeding injuries which have not been explained. His contention is that it is a case falling under Exception 4 of section 300, I.P.C. and appellants have wrongly been convicted under section 302 of I.P.C. 4. He, further submitted that the injuries found on the person of the accused have not been explained and accused also received bleeding injuries which have not been explained. His contention is that it is a case falling under Exception 4 of section 300, I.P.C. and appellants have wrongly been convicted under section 302 of I.P.C. 4. The four eye-witnesses who have been relied upon by the trial court to convict the appellants are PW1 Kudrat Ali, PW4 Jahid Baksh, PW8 Abdul Shakil and PW 12 Abdul Aziz. 5. So far as accused Tohid is concerned, PW1 Kudrat Ali has stated in his examination-in-chief that Tohid had given a blow from sword on Tahir. He has described only single sword blow on Tahir by Tohid. PW1 is cousin brother of deceased Tahir and he has stated that he made no attempt to save the deceased Tahir. In his police statement Ex.D/1, he has not disclosed the details of the injuries caused by Tohid. 6. PW4 Jahid Baksh has stated as to how the incident had occurred. According to him, PW4 Jahid and deceased Tahir had taken their buffaloes to the hand pump for giving them water. The accused persons had kept their two buckets full of water and the buffaloes of the deceased had drunk water from them which had led to the quarrel. His statement show that the incident took place in a spur of moment and there was no premeditation of mind. As per his statement when fight started the accused persons were unarmed and on initiation of fight, they had brought sword and Tohid had inflicted injuries on Tahir using the sword. In his statement before the court he has stated that Tohid had given three blows of sword but in his police statement Ex.D/2, there is only mention of one sword blow on Tahir by accused Tohid. He has admitted that he is the accused in another case for beating the accused. 7. PW8 Abdul Shakil has also stated that the fight had started on the issue of water when Tahir Baksh and Jahid Baksh had taken the buffaloes to the hand pump for giving them water. As per his version also, the accused were unarmed when the fight started and they had brought the sword later on during the fight. 7. PW8 Abdul Shakil has also stated that the fight had started on the issue of water when Tahir Baksh and Jahid Baksh had taken the buffaloes to the hand pump for giving them water. As per his version also, the accused were unarmed when the fight started and they had brought the sword later on during the fight. He has also not given the details and number of sword blow caused by accused Tohid on the deceased Tahir. PW 8 is also cousin brother of deceased Tahir. 8. PW 12 Abdul Aziz appears to have reached the spot later since he states that when he had reached the spot some people had caught hold of Jahid and Tohid was holding sword in his hand and front portion of the shirt of Tahir was blood stained and Tahir had given sword blow on his chest. In his case diary statement Ex.D/3, the fact that Tohid had given sword blow on the chest of Tahir is missing. 9. From the evidence of the eye-witnesses, it is clear that there was no premeditation and the incident occurred in a spur of moment in the heat of passion. The quarrel started on the issue of drinking of water by the buffaloes of the deceased party from the buckets which were filled up by the appellants/accused. There is no evidence of prior enmity. The evidence of the eye-witnesses also establishes that fight was sudden. 10. Injuries have also been found on accused Tohid and Baboo Khan which have not been explained by the prosecution. PW13 Dr. C. K. Dubey has found following injuries on accused Tohid : 1. One incised wound on left arm outside on the lower portion size 4cm x 1cm x ½ cm. 2. One incised wound behind left shoulder size 1½ cm x ½ cm x ½ cm. 3. One narrow abrasion wound on the left arm size 10 cm x 1/10 cm. 4. One narrow incised wound outside the right index finger having pace of 1½ cm x 1/10 cm upto the surface of the skin. He has also opined that these injuries were caused by hard and sharp weapon. PW13 C. K. Dubey has also found following injuries on accused Baboo Khan :- 1. One incised wound above right eyebrow size 7cm x 1½ cm upto the depth of skin for which X-Ray was advised. 2. He has also opined that these injuries were caused by hard and sharp weapon. PW13 C. K. Dubey has also found following injuries on accused Baboo Khan :- 1. One incised wound above right eyebrow size 7cm x 1½ cm upto the depth of skin for which X-Ray was advised. 2. One narrow abrasion on the right arm size 10cm x 1/10 cm. 3. One thin abrasion on right shoulder size 10cm x 1/10 cm. 4. One incised wound on the right index finger size 1/10 cm x ¼ cm upto the depth of skin. 5. One incised wound on the right palm size 10 cm x ¼ cm. 6. One incised wound above wound No. 5 size 3cm long and 1/10 cm wide upto the depth of the skin. 7. One incised wound 2 cm x ¼ cm upto the depth of skin on the inside part of "anamika" finger. 8. One incised wound size ½ cm x ¼ cm upto the depth of skin 1 cm above the wound No.7. He has further opined that these injuries were caused by hard, and sharp weapon and the injury No. 1 falls in the category of disfiguration. 11. Supreme Court in the matter of Lakshmi Singh v. State of Bihar ( AIR 1976 SC 2263 ) has held that non-explanation of injuries sustained by the accused is a very important circumstance from which the court can draw following inferences : 1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. 3. That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The Supreme Court in the said judgment has further held in paragraph 11 that : "The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of P.Ws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus, neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : (Reported in AIR 1975 SC 1478 ) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable, consistent and creditworthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case and the High Court was, therefore, In error in brushing aside this serious infirmity in the prosecution case on unconvincing premises. 12. The injuries which have been received by the accused persons have not been explained by the prosecution and the prosecution witnesses have denied causing of the said injuries to the accused which affects the credibility of their version. Looking to the injuries received by accused persons and looking to the chain of events, it does not appear that accused persons have taken undue advantage or acted in cruel or unusual manner. 13. Thus, from the evidence on record, it appears that there was a sudden fight for which both the parties are to be blamed and in which both the parties received injuries. Trial court in paragraph 14 of the judgment has taken note of the counter case Sessions Trial No.95/90 which is against PW4 Jahid Baksh and deceased Tahir Baksh for the same incident for causing injuries on accused. 14. Trial court in paragraph 14 of the judgment has taken note of the counter case Sessions Trial No.95/90 which is against PW4 Jahid Baksh and deceased Tahir Baksh for the same incident for causing injuries on accused. 14. Supreme Court in the matter of State of U.P. v. Jodha Singh and others ( AIR 1989 SC 1822 ) has held that if there is wordy quarrel and quarrel led to use of weapon by both the parties against each other and if the accused have not deliberately attacked the deceased with the intention to kill then the case would fall under exception 4 of section 300 I.P.C. 15. In the matter of Sridhar Bhuyan v. State of Orissa ( AIR 2004 SC 4100 ) : (2004 Cri LJ 3875) Supreme Court has considered the parameters for bringing into operation of exception 4 to section 300 I.P.C. by holding that 7. For bringing in operation of Exception 4 to Section 300, IPC it has to be established that the act was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth Exception of Section 300, I.P.C. covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the first Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side for if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, I.P.C. is not defined in the I.P.C. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantange or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage.' 16. In the case of sudden fight normally the intention to kill is missing. It must further be shown that the offender has not taken undue advantange or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage.' 16. In the case of sudden fight normally the intention to kill is missing. In the matter of Ram Karan and others v. State of Uttar Pradesh ( AIR 1982 SC 1185 ) has held that :- "7. Taking an overall view of the situation, we find no evidence of any intention to kill the two deceased on the part of the accused because the occurrence itself had taken place suddenly when to begin with, the entire episode started for the particular purpose of partitioning the land by the Commissioners who had visited the village. In these circumstances we are satisfied that Exception 4 of Section 300, I.P.C. is attracted and the offence of murder would be reduced to culpable homicide in respect of accused Sunil Kumar and Ved Prakash and, therefore, they would be guilty of committing an offence under section 304 Part 1/34 I.P.C. and they should be convicted accordingly. To this extent, therefore, we are unable to agree with Brother Varadarajan, J. that the conviction of the appellants Sunil Kumar and Ved Prakash under S.302 read with S.34 of the I.P.C. should be confirmed." 17. In the matter of Sandhya Jadhav (Smt.) v. State of Maharashtra (2006) 4 SCC 653 ) : 2006 Cri LJ 2111, the court has considered the meaning of "sudden fight" occurring in Exception 4 to Section 300, I.P.C. The observations contained in paragraph 9 is as under :- "In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 I.P.C. is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case." Evidence in the present case shows that it is a case where sudden fight had taken place. 18. In the present case, fight was not only sudden but on petty issue of drinking of water by the buffalo from the bucket filled up by the accused. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. (2006) 11 SCC 444 : 2006 Cri LJ 3899, the view taken by the Supreme Court is that many petty or insignificant matters - plucking of a fruit, straying of cattle etc. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. (2006) 11 SCC 444 : 2006 Cri LJ 3899, the view taken by the Supreme Court is that many petty or insignificant matters - plucking of a fruit, straying of cattle etc. may lead to altercations and group clashes culminating in deaths without there being any motive of revenge, greed, jealousy and without any intention of premeditation or culminating which may not fall under section 302 of I.P.C. The view expressed in paragraph 29 of the said judgment is as under :- 29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302 are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. 19. In Subhash Shamrao Pachunde v. State of Maharashtra (2006) 1 SCC 384 : 2006 Cri LJ 546, the Supreme Court has taken view that while considering the distinction between the offences of culpable homicide and murder is the presence of special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. 20. In the present matter, the alleged eyewitnesses are all related with the deceased. The fight was sudden without any premeditation. There was no prior enmity. Accused were unarmed when fight had started. Fight had started on trivial issue. In the fight accused have also received injuries which have not been explained. There is also a counter case by the accused. In the present matter, the alleged eyewitnesses are all related with the deceased. The fight was sudden without any premeditation. There was no prior enmity. Accused were unarmed when fight had started. Fight had started on trivial issue. In the fight accused have also received injuries which have not been explained. There is also a counter case by the accused. It cannot be said that accused have taken undue advantage or acted in cruel or unusual manner. There are material omissions in the statement of eyewitnesses. Non-explanation of injuries found on the accused by the prosecution indicates that they are not disclosing the true version. Thus, all the four ingredients of exception 4 to Section 300 I.P.C. are present in the case and trial court had committed an error in convicting the appellants under section 302 I.P.C. 21. For the reasons aforesaid, we set aside the conviction of appellants under section 302 read with section 34 I.P.C. 22. We have already examined the evidence of eye-witnesses against accused Tohid and looking to the evidence of the witnesses, appellant No.2 Tohid is convicted for offence under section 304 Part I of I.P.C. 23. So far as appellant Baboo Khan is concerned, none of the witnesses have deposed that Baboo Khan had caused any injury on the deceased Tahir. PW1 Kudrat Ali has stated that the injuries on the finger of PW4 Jahid Baksh was caused from the sword of Baboo. In his police statement Ex. D/1, there is no mention that Baboo was holding Tahir when Tohid was inflicting the sword blow. PW4 Jahid Baksh has also stated about receiving injury in the finger of his left hand from the sword of Baboo. In his police statement Ex.D/2 he has not stated about the attack from sword by the accused Baboo. PW8 Abdul Shakil in his examination-in-chief has not stated about Baboo causing injuries on PW4 Jahid from the sword. According to him, Baboo had come later. In his police statement Ex.D/4 also he did not state that accused Baboo caused any sword injury to anyone. PW12 Abdul Aziz had also not seen Baboo holding sword or causing any injury from the sword. In the cross-examination, he has specifically stated that Baboo had not caused any injury from the sword on Tahir. In his police statement Ex.D/4 also he did not state that accused Baboo caused any sword injury to anyone. PW12 Abdul Aziz had also not seen Baboo holding sword or causing any injury from the sword. In the cross-examination, he has specifically stated that Baboo had not caused any injury from the sword on Tahir. Thus, from the evidence of eye-witnesses, only this can be inferred that Baboo had caused injury on the finger of PW4 Jahid Baksh. There is also no evidence on record, to show that Baboo shared common intention with accused Tohid. Thus, at the most offence under section 324 I.P.C. is made out against the accused Baboo and therefore he is convicted for offence under section 324 I.P.C. 24. Accordingly, appellant Tohid is sentenced to ten years rigorous imprisonment and fine of Rs. 10,000/- (Rupees ten thousand) for offence under section 304 Part I I.P.C. In default of payment of fine, he shall suffer simple imprisonment for two years. Out of amount of fine, sum of Rs.9,500/- be disbursed to the legal representatives of the deceased. Baboo, who is convicted under section 324 of the I.P.C., has already remained in custody for seven months therefore he is sentenced to the period undergone by him and fine of Rs.4000/-. In default of payment of fine, he shall suffer simple imprisonment for one month. 25. The appeal is disposed of accordingly. Order accordingly.